IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION KYLE BERMINGHAM, CASE NO.

: Plaintiff, vs. THE CITY OF CLERMONT, FLORIDA; and STEVE GRAHAM, in his official and individual capacities, Defendants. _________________________________________/ VERIFIED COMPLAINT (JURY DEMAND ENDORSED HEREUPON) INTRODUCTION The Plaintiff, KYLE BERMINGHAM (hereinafter, BERMINGHAM or Plaintiff), by and through the undersigned attorney, respectfully petitions this Court for issuance of equitable and monetary relief. The instant Complaint, and its related Petition for Preliminary Injunction, are premised upon the violation by Defendants of the First Amendment to the United States Constitution, as incorporated against the States by the Fourteenth Amendment to the United States Constitution, and to violations of the Law Enforcement Officers Bill of Rights, Fla. Stat. 112.531, et seq.

BERMINGHAM was targeted for disciplinary action, suspended and, ultimately, terminated in retaliation for his private speech on matters of public concern. A later arbitration, which addressed matters falling outside the instant Complaint, failed to reinstate BERMINGHAM for the unlawful and

unconstitutional actions of the Defendants. As a matter of equitable relief, BERMINGHAM is requesting that the District Court issue a Permanent Injunction to quash the final administrative action set forth in the Correspondence/Memorandum dated June 21, 2010, issued by Defendant CITY OF CLERMONT (hereinafter, CITY), by and through its agent, the Clermont Police Department (hereinafter, Clermont PD or Agency) and its Police Chief, Defendant STEVE GRAHAM (hereinafter, GRAHAM) affirming the discipline of the Plaintiff which included Plaintiffs dismissal from employment with the Clermont PD, and thus the initial determination of GRAHAM, the individual who initiated the unlawful investigation and action against BERMINGHAM. Separately, BERMINGHAM requests monetary relief for GRAHAMs unlawful actions in unlawfully initiating the action against BERMINGHAM, and in retaliating against BERMINGHAM for the latters exercise of protected conduct. In support of this Petition, BERMINGHAM would further allege as follows:2

1.

THE PARTIES: Plaintiff, BERMINGHAM, is and was at all material

times to this action an adult resident of Polk and Lake Counties, Florida, and employed as a Police Officer with the Clermont PD, located in Lake County, Florida. 2. BERMINGHAM was a Career Service Employee of Clermont PD.

BERMINGHAM excelled during his law enforcement career with Clermont PD including, but not limited to, workplace evaluations reflecting superior service, and dating back to the period spanning October 2006, through the period just prior to being placed under the internal investigation in the case-at-bar. 3. BERMINGHAM was a 3-year veteran of Clermont PD, with a date

of hire of October 17, 2006. Prior to the retaliatory actions described, herein, BERMINGHAMs disciplinary record featured predominantly minor verbal counselings. Otherwise, over the past three (3) years, BERMINGHAMs

disciplinary record has been spotless. 4. Defendant, CITY OF CLERMONT, is a municipal entity, formally

incorporated pursuant to the laws of the State of Florida. CITY employs, as its representatives both the Chief of Police (CITYs chief law enforcement official) and the City Manager (its chief executive officer). Presently, and for all periods relevant to the instant Petition, those positions have been respectively occupied by Defendant GRAHAM as its Police Chief; and, as its City Manager, Wayne3

Saunders (hereinafter, Saunders). GRAHAM and Saunders continue to serve in appointed positions at the pleasure of the CITY, and pursuant to the authority contained within CITYs Code of Ordinances. 5. Defendant GRAHAM has served as the appointed Chief of Police of In his official capacity,

Defendant CITY since approximately July 2005.

GRAHAM has been vested with supervisory authority as the chief law enforcement officer within Defendant CITY, and was charged with enforcement of CITYs laws and policies. Further, in both his official and his individual

capacity as a private citizen GRAHAM was vested with the ability to initiate administrative investigations against law enforcement officers. GRAHAM is the listed complainant who initiated the actions that resulted in the administrative investigation and disciplining of BERMINGHAM. 6. At all times relevant hereto, GRAHAM acted under color of state law,

and is being sued in his individual, as well as within his official, capacity. 7. JURISDICTION: CITY and GRAHAM are subject to the jurisdiction

of the United States District Court, Middle District of Florida, Ocala Division. 8. Jurisdiction is appropriate as all events relevant to the instant cause of

action occurred in and/or around the City of Clermont, Lake County, Florida, within the Middle District of Florida.

9.

This action is brought pursuant to 42 U.S.C. Sections 1983 and 1988,

as well as the First Amendment to the Constitution of the United States and claims arising under the laws of the State of Florida. The jurisdiction is invoked pursuant to 28 U.S.C. Section 1331 and 1343(3), (4) of the aforementioned constitutional and statutory provisions. 10. Further, jurisdiction is appropriate over the state law claim for

violations of Fla. Stat. 112.531, et seq., arise pursuant to the District Courts supplemental jurisdiction, 28 U.S.C. 1367. 11. VENUE: The conduct complained of and situs of its Police Chief,

Defendant GRAHAM, and the CITY regarding the discipline of BERMINGHAM is within Lake County, within the Middle District of Florida. Therefore, venue is proper in this Court. 12. The initiation by of the administrative the investigation ensuing against

BERMINGHAM

Defendant

GRAHAM;

administrative

investigation pursued by Defendant GRAHAM as the Clermont Police Chief; the findings of the administrative investigation, and the ultimate decision rendered first by Defendant GRAHAM; and the affirming of GRAHAMs disciplinary findings and decision by CITY, by and through City Manager Saunders on June 21, 2010 (upholding the disciplinary employment-related sanctions against BERMINGHAM as a Clermont Police Officer), occurred within Lake County, Florida, within the5

Middle District of Florida. Accordingly, venue is proper in this Court pursuant to 28 U.S.C. 1391(b). 13. Pursuant to Florida law, municipal police officers are provided with Fla. Stat. 110.205, 110.227. As a Career Service

Career Service status.

employee, BERMINGHAM is shielded from actions involving dismissal absent a finding of just cause. Further, there is a constitutionally-safeguarded property interest created in BERMINGHAMs position as a CLERMONT POLICE Officer, thus according him with the right to procedural due process. Ison v. Zimmerman, 372 So.2d 431 (Fla. 1979); McRae v. Douglas, 644 So.2d 1368 (Fla. 5th DCA 1994). 14. There are multiple sources for the administrative procedure in place at

Clermont PD and pursuant to the rights retained by BERMINGHAM as a law enforcement officer, Career Service Officer, and as an employee of the City of Clermont, to wit: a. Clermont Police Department General Orders, at 10.02. A true and correct copy of the applicable section is attached hereto as BERMINGHAM Exhibit No. 1. The Collective Bargaining Agreement between the CITY and the official union bargaining unit for the Clermont Police Department, at Art. 5. A true and correct copy of the applicable section is attached hereto as BERMINGHAM Exhibit No. 2.6

b.

c.

Florida Statutes 110.227 (2010), defining the rights of Career Service Employees, and instructing the agency adoption of rules and regulations for administration of investigations. A true and correct copy of the statute is attached hereto as BERMINGHAM Exhibit No. 3. Florida Statutes 112.531, et seq., the Law Enforcement Officers Bill of Rights (hereinafter, LEOBOR), which defines the rights safeguarding law enforcement officers from being subjected to arbitrary and capricious agency action during the initiation, investigation, and execution of administrative investigations. A true and correct copy of the LEOBOR is attached hereto as BERMINGHAM Exhibit No. 4. The City of Clermonts Harassment Policy, which stated1 that [i]t is the obligation of all department heads, supervisors and employees of the City to provide a work environment free of harassment. Separately, the same Policy provides for a no tolerance retaliation policy against any employee for cooperating in an investigation or for making a complaint of harassment. A true and correct copy of the City of Clermonts Harassment Policy is attached hereto as BERMINGHAM Exhibit No. 5. FACTUAL BACKGROUND

d.

e.

15.

Defendant CITY employed BERMINGHAM between October 2006,

and April 2010.

1 On January 10, 2012, the City of Clermont amended this policy to exclude the obligation of departmental and supervisory personnel to provide a workplace free of harassment.

16.

Throughout his tenure with CITY, BERMINGHAMs performance

appraisals indicated that he was an above-average employee with a good working knowledge of criminal laws and procedures. He had no less than satisfactory marks, many better than satisfactory marks, and a few outstanding marks. 17. For example, BERMINGHAMs evaluation for the period of October

2007, through October 2008 (the last evaluation period ever rendered to BERMINGHAM by Defendants), rated his quality of work and job knowledge as better than satisfactory, and his judgment as satisfactory. In his overall comments, BERMINGHAMs supervisor, Sergeant Mark Edwards, wrote that

BERMINGHAM was a well-rounded officer and spends a lot of his free time trying to better himself by studying case law and Florida statutes. He is thorough in his investigations and devotes time to each case he is involved in. 18. Notwithstanding this high level of job performance, in April 2010,

BERMINGHAM was terminated for violations of the following Clermont PD General Orders: a. General Order (hereinafter, G.O.) 10.01 II.B.#161, titled Conduct Unbecoming a Member of the Department. G.O. 10.01, a generic charge of Standards of Conduct. G.O. 10.01, II.E.2, titled Careless Disregard.

b.

c.

With regard to the Careless Disregard count, above, the Defendants injected the count following BERMINGHAMs administrative interrogation, and without ever providing him with notice to address the allegation at any time prior to imposition of discipline dismissal from service. In doing so, the Defendants violated

BERMINGHAMs rights under the LEOBOR. 19. Specifically, CITY, by and through Defendant GRAHAM, concluded

that Officer BERMINGHAMs conduct in creating and forwarding an email accusing Chief Graham of criminal conduct had an adverse impact on the Department and has destroyed public respect and confidence in our agency. Of. BERMINGHAMs actions were reckless and malicious .... 20. The acknowledged factual basis for the CITYs charge, and for its

ultimate dismissal of BERMINGHAM on the allegation raised in 19, above, was in response to BERMINGHAMs private speech made while off-duty to another specifically, now-former Clermont Police Sergeant Kimberly Meintzschel (hereinafter, Meintzschel). 21. The private speech between BERMINGHAM and Meintzschel was

premised around the latters investigation of a citizens complaint, by Christina Vaughan, alleging criminal misconduct by Defendant GRAHAM during the arrest of Charles Williams on June 6, 2009.

22.

The June 6, 2009, incident involved Defendant GRAHAM acting,

while in his capacity as a law enforcement officer, to make alleged extortive threats upon Christina Vaughan to force entry into her dwelling without a warrant and without any exigent circumstances permitting for the warrantless entry into Christina Vaughans home in order to arrest Charles Williams. 23. Meintzschel had privately contacted BERMINGHAM for friendly

advice on the situation and to comment, based upon his private knowledge, on the legality of GRAHAMs alleged actions. 24. BERMINGHAM had privately, and while off-duty, responded to

Meintzschels request, and provided the relevant authority upon which Meintzschel could make a decision regarding the legality of GRAHAMs allegedly criminal actions. 25. Thereafter, the administrative investigation of BERMINGHAM on the

allegation contained in 19-20, above, was initiated by Defendant GRAHAM, while acting in both his official and individual capacity. 26. Based upon information and belief, GRAHAMs initiation of the investigation against BERMINGHAM, and the ensuing

administrative

investigation, findings and discipline, were also committed in retaliation for BERMINGHAMs private actions in reporting to the Florida Department of Law Enforcement (FDLE) other unlawful and/or improper actions by GRAHAM.10

27.

In October 2009, BERMINGHAM, alongside other members of the

Clermont Police Department, while off-duty and acting as private citizens, approached FDLE to request a formal investigation be mounted against Defendant GRAHAM within his capacity as Clermont Police Chief. These off-duty officers, acting in a civilian capacity, included the following individuals with the following matters of public concern: a. BERMINGHAM, who attempted to bring to the attention of FDLE an assault, and later battery committed by GRAHAM against Clermont Police Officer James Rooney. Cecil Garrett, who attempted to bring to the attention of FDLE the potential criminal felony actions of GRAHAM on the evening of June 6, 2009, and involving the forced entry into the home of Christina Vaughan. Gary Holmes who, at the time, had been unlawfully terminated from his position with Clermont PD (and was later reinstated through arbitration), and who attempted to bring to the attention of FDLE GRAHAMs threats of, and taking action to perpetuate, unlawful criminal arrest of innocent citizens. Jeff Radi, who attempted to bring to the attention of FDLE GRAHAMs physical assault and arrest on a juvenile suspect within the suspects home, and for which there was no probable cause to legitimize an arrest.

b.

c.

d.

11

e.

Kimberly Meintzschel, who attempted to bring to the attention of FDLE GRAHAMs misconduct in ignoring fraudulent misconduct by another police sergeant that was resulting in the theft of taxpayer dollars. Mark Edwards, who attempted to bring to the attention of FDLE other inappropriate and/or unlawful misconduct by GRAHAM.

f.

28.

FDLE failed to conduct any substantive investigation on any of the

matters brought to its attention (and as alleged in 27, above). A brief inquiry was opened by FDLE based upon the allegations sought to be raised by Cecil Garrett, and later by Kimberly Meintzschel. However, even that inquiry failed to

thoroughly investigate the allegations lodged against GRAHAM. 29. Based upon information and belief, Defendants became aware of the

citizen complaints of its six (6) officers and targeted each one with retaliatory action. 30. All of the six (6) Clermont Police Officers mentioned in 27 were

subjected to retaliatory discipline by Defendants, to wit: a. BERMINGHAM, Cecil Garrett and Kimberly Meintzschel were subsequently confronted with fabricated administrative charges that resulted in dismissal; Jeff Radi, confronting similar retaliatory discipline, resigned his law enforcement position prior to the Defendants effectuating imposition of serious disciplinary sanctions.12

b.

c.

In late-2011, Mark Edwards was the subject of retaliation resulting in his demotion in rank by GRAHAM. Gary Holmes, reinstated to his law enforcement position with Clermont PD, following an arbitration challenge to his dismissal, was perhaps not again subjected to dismissal, but was nonetheless victimized by continuous retaliatory discipline by the Defendants. This same retaliation ultimately forced Holmes decision to take early retirement in mid-2011.

d.

31.

BERMINGHAMs termination arose following a campaign by

Defendants to discredit him through the initiation of false administrative charges, followed by kangaroo investigations, and the imposition of discipline that would eventually result under a scheme of progressive discipline in BERMINGHAMs dismissal from his career service position. 32. The Defendants targeted BERMINGHAM for dismissal as a direct

result of him exercising his First Amendment rights as a private citizen to raise, discuss, and associate with others regarding issues of public importance. 33. BERMINGHAMs protected activity under the First Amendment was

a substantial or the exclusive motivating factor of the Defendants decisions to initiate, pursue, impose and uphold discipline against BERMINGHAM, up through and including his termination.

13

34.

Further, in targeting BERMINGHAM for his exercise of his First

Amendment rights, the Defendants also violated BERMINGHAMs rights under the Law Enforcement Officers Bill of Rights, codified under Fla. Stat. 112.531, et seq. 35. The Law Enforcement Officers Bill of Rights (LEOBOR) is an

articulation by the Florida State Government of procedural due process protections to be accorded to certified law enforcement officers whenever confronting with administrative, i.e., internal discipline. 36. Specifically, in the administrative investigations that resulted in

BERMINGHAMs discipline and eventual dismissal, the Defendants, including GRAHAM in both his official and individual capacities, violated the following LEOBOR protections: a. BERMINGHAM was deprived of relevant documentation or the ability to review such documentation prior to his interrogations and pertaining to his charge(s) including, but not limited to, witness statements and other investigatory documents. In the instances where GRAHAM initiated the administrative complaint against him, BERMINGHAM never received a sworn statement from GRAHAM, and was never advised if one was ever obtained from GRAHAM. Indeed, on at least one occasion, BERMINGHAM was never even advised that the complainant was, in fact, GRAHAM.14

b.

c.

During various investigations, BERMINGHAM was not fully apprised of material witnesses, whether or not such witnesses were interviewed prior to his own interrogation, and was not provided with the opportunity to review the statements of all material witnesses. Indeed, in several instances, material witnesses to the investigation were never interviewed by the assigned internal investigator with Clermont PD. BERMINGHAM was deprived of the opportunity to gather evidence that could have exonerated him of any charge(s). BERMINGHAM was, on occasion, not provided with any opportunity to appeal the lack of proper notice, or the discipline that was imposed by the Defendants. As mentioned in 19, above, BERMINGHAM was never provided with any notice of the injection of an additional count, post-administrative interrogation, in the case that acted as the pretext for his termination from service.

d.

e.

f.

37.

Nonetheless, during 2009, BERMINGHAM was subjected to the

following, retaliatory actions by Defendants that resulted in him receiving one (1) reprimand, two (2) suspensions, and eventually culminating in a dismissal from his law enforcement position: a. On June 1, 2009, BERMINGHAM was improperly deemed responsible for, and reprimanded for, violating a Clermont Police Department General Order concerning job knowledge and performance. In the case, the CITY failed altogether in its15

obligation to interview any and all material witnesses including the complainant. b. On September 1, 2009, the Department suspended BERMINGHAM for one (1) day over an allegation that should never have been sustained against BERMINGHAM. The arbitrator later overrode this finding and discipline. However, the arbitrators expunction of that finding and discipline bears on whether BERMINGHAMs subsequent termination was unlawful. On December 28, 2009, the Defendants retaliated against BERMINGHAM, and subjected him to a five (5) day suspension. BERMINGHAM grieved this suspension; however, the CITY ignored BERMINGHAMs efforts to administratively appeal this determination. Ultimately, in rather unorthodox fashion, the arbitrator in BERMINGHAMs administrative appeal of his dismissal decided to address these matters previously ignored by CITY.

c.

38.

BERMINGHAMs termination, as discussed in 18-24, above,

resulted from the retaliatory disciplining of Meintzschel by the Defendants. This disciplinary action against Meintzschel resulted from her efforts to report GRAHAMs perceived, unlawful actions in the matter pertaining to Christina Vaughan. 39. BERMINGHAM was interrogated twice as a witness during the

During the course of these interviews, BERMINGHAM stated to

Johnson that he had emailed Meintzschel in response to a request from the latter seeking bullet points regarding Fla. Stat. 836.05, titled Threats-Extortion. 41. Meintzschel had planned on using BERMINGHAMs input on Fla.

Stat. 836.05 in drafting an email to Clermont City Manager Wayne Saunders, and to bring to Saunders attention the actions of GRAHAM involving Christina Vaughan. 42. The emails between Meintzschel and BERMINGHAM all occurred

GRAHAM. This private communication, on a matter of great public concern, i.e., the potentially felony criminal actions of a police chief, resulted in GRAHAM initiating an administrative complaint, in his individual capacity and in his official capacity, against BERMINGHAM. 44. The administrative complaint lodged by GRAHAM (and directly

implicating actions that personally involved GRAHAM), both in his individual capacity and under color of his authority as Police Chief, resulted in him assigning Johnson to the investigation of BERMINGHAM; resulted in the regular, improper and unlawful discussions between Johnson and GRAHAM, contrary to the confidentiality provisions of the LEOBOR; and resulted in the overall supervision17

of the investigation by GRAHAM.

See Complaint, at 18 (enumerating the

charges pursued against BERMINGHAM by GRAHAM and CITY). 45. Ultimately, GRAHAM also exercised his official authority to review,

affirm, and impose discipline, i.e., termination, over BERMINGHAM. 46. During the course of the administrative investigation against

BERMINGHAM, as discussed in 44-45, above, Defendants again attempted to interrogate BERMINGHAM. Through the intervention of an attorney retained by the union bargaining unit, the International Union of Police Organizations (IUPA), this additional attempt to unlawfully subject BERMINGHAM to additional interrogation was abandoned by Defendants. 47. Substantial disciplinary and non-disciplinary action was directed

against BERMINGHAM in retaliation for his private speech that addressed the perceived unlawful actions of GRAHAM. 48. After BERMINGHAMs termination, the CITY did not pursue a

challenge over BERMINGHAMs entitlement to unemployment compensation. In other words, the CITY did not choose to assert that there was a legitimate cause for BERMINGHAMs dismissal and consequent deprivation of his entitlement to unemployment compensation. 49. As a direct and proximate result of Defendants actions complained of

herein, BERMINGHAM has suffered and will continue to suffer harms including,18

but not limited to, lost wages and benefits; severe economic loss; the chill of, and punishment for, the lawful exercise of his rights under the First Amendment; severe emotional distress, shame, humiliation, loss of enjoyment of life, and mental anguish. FIRST CAUSE OF ACTION Violation of Free Speech In Violation of the First & Fourteenth Amendments (As to Defendants CITY and GRAHAM) 50. BERMINGHAM reasserts and realleges the above allegations in 1-

49, as if fully set forth herein. 51. BERMINGHAM was, at all times relevant hereto, engaged in the

lawful exercise of his First Amendment rights when, as a private citizen, he spoke on matters of public concern. 52. In initiating, imposing, affirming and maintaining disciplinary action

against BERMINGHAM, based in whole or in part upon the exercise of his rights to Association, Free Speech and to Petition the Government for Redress of Grievances upon matters of public concern, Defendants jointly and severally, violated his rights secured to BERMINGHAM by the First and Fourteenth Amendments to the United States Constitution. 53. The actions of Defendants CITY and GRAHAM were intended to

create a chilling effect upon the exercise of BERMINGHAMS rights under the

19

First Amendment. 54. Defendants CITY and GRAHAM acted under the color of law, or

were willful participants in joint official action with, and was jointly engaged with, others who acted under the color of law, including under the color of federal and state law, custom, or usage when taking the actions referenced above and herein. 55. Defendants CITY and GRAHAM, acting under color of law and

pursuant to official policy, custom or usage, knowingly, recklessly, or with gross negligence failed to instruct, supervise, control and discipline on a continuing basis its managers, agents in their duties to refrain from: a. Unlawfully and maliciously harassing law enforcement officials, including BERMINGHAM, who was acting in accordance with his constitutional and statutory rights, privileges and immunities. Unlawfully and maliciously prosecuting law enforcement officials, including BERMINGHAM, who was acting in accordance with his constitutional and statutory rights, privileges and immunities. Conspiring to violate the rights, privileges and immunities guaranteed to BERMINGHAM by the United States Constitution, and federal and state law; and Otherwise depriving BERMINGHAM of his constitutional and statutory rights, privileges and immunities.

b.

c.

d.

20

56.

Defendants CITY and GRAHAM possessed knowledge, or should

have possessed knowledge had it diligently exercised those duties to instruct, supervise, control and discipline on a continuing basis that the wrongs conspired to be done, as heretofore alleged, were about to be committed. 57. Defendants CITY and GRAHAM possessed the power to prevent or

aid in preventing the commission of said wrongs; could have done so via the exercise of reasonable diligence; and knowingly, recklessly, or with gross negligence failed or refused to do so. 58. Defendants CITY and GRAHAM directly or indirectly, under color of

law, approved or ratified the unlawful, deliberate, malicious, reckless, and wanton conduct of their managers its agents, as heretofore described. 59. As a direct and proximate cause of the grossly negligent and/or

intentional acts of Defendants CITY and GRAHAM, BERMINGHAM has suffered loss of income, and severe mental anguish in connection with the deprivation of his constitutional and statutory rights, as guaranteed by the First and Fourteenth Amendment of the United States Constitution. 60. By virtue of Defendants CITY and GRAHAMs violations of the First

and Fourteenth Amendments, BERMINGHAM respectfully requests declaratory and injunctive relief, and such other and further relief as the Court shall deem just, equitable and proper.21

WHEREFORE, BERMINGHAM demands judgment, pursuant to 42 U.S.C. 1983, against Defendants CITY and GRAHAM for declaratory and injunctive relief, compensatory damages, punitive damages, all costs associated with this action including, but not limited to, attorneys fees, and any and all such other relief as deemed just and equitable. SECOND CAUSE OF ACTION Violation of 42 U.S.C. 1983 Deprivation of BERMINGHAMS Civil Rights Pursuant to State Action and Under Color of State Law Refusal or Neglect to Prevent Violation of Civil Rights (As to Defendants CITY and GRAHAM) 61. BERMINGHAM reasserts and realleges the above allegations in 1-

49, as if fully set forth herein. 62. Defendants CITY and GRAHAM acted under the color of law, or

were willful participants in joint official action with, and were jointly engaged with, others who acted under the color of law, including under the color of federal and state law, custom, or usage when taking the actions referenced above and herein. 63. Defendants CITY and GRAHAM acting under color of law and

pursuant to official policy, custom or usage, knowingly, recklessly, or with gross negligence failed to instruct, supervise, control and discipline on a continuing basis its managers and agents in their duties to refrain from:22

a.

Unlawfully and maliciously harassing law enforcement officials, including BERMINGHAM, who was acting in accordance with his constitutional and statutory rights, privileges and immunities. Unlawfully and maliciously prosecuting law enforcement officials, including BERMINGHAM, who was acting in accordance with his constitutional and statutory rights, privileges and immunities. Conspiring to violate the rights, privileges and immunities guaranteed to BERMINGHAM by the United States Constitution, and federal and state law; and Otherwise depriving BERMINGHAM of his constitutional and statutory rights, privileges and immunities.

b.

c.

d.

64.

Defendants CITY and GRAHAM possessed knowledge, or should

have possessed knowledge had they diligently exercised those duties to instruct, supervise, control and discipline on a continuing basis that the wrongs conspired to be done, as heretofore alleged, were about to be committed. 65. Defendants CITY and GRAHAM possessed the power to prevent or

aid in preventing the commission of said wrongs; could have done so via the exercise of reasonable diligence; and knowingly, recklessly, or with gross negligence failed or refused to do so.

23

66.

Defendants CITY and GRAHAM directly or indirectly, under color of

law, approved or ratified the unlawful, deliberate, malicious, reckless, and wanton conduct of its managers agents, as heretofore described. 67. As a direct and proximate cause of the grossly negligent and

intentional acts of Defendants CITY and GRAHAM, BERMINGHAM has suffered loss of income, and severe mental anguish in connection with the deprivation of his constitutional and statutory rights, as guaranteed by the Fourteenth Amendment of the United States Constitution, and safeguarded by 42 U.S.C. 1983. 68. By virtue of Defendants CITY and GRAHAMs violations of 1983,

BERMINGHAM is entitled to injunctive relief, compensatory damages, punitive damages, and attorneys fees. WHEREFORE, BERMINGHAM demands judgment, pursuant to 42 U.S.C. 1983, against Defendants CITY and GRAHAM for injunctive relief, compensatory damages, punitive damages, all costs associated with this action including, but not limited to, attorneys fees, and any and all such other relief as deemed just and equitable.

24

THIRD CAUSE OF ACTION Violations of the Florida Statutes Sections 112.532 and 112.533 The Law Enforcement Officers Bill of Rights, Statutory Rights to Procedural Due Process (As to Defendants CITY and GRAHAM) 69. BERMINGHAM reasserts and realleges the above allegations in 1-

49, as if fully set forth herein. 70. The actions of Defendants CITY and GRAHAM affected a

deprivation upon BERMINGHAMs rights pursuant to Fla. Stat. 112.532, 112.533, the Law Enforcement Officers Bill of Rights. These violations,

including the making of false reports, the pursuit of investigation premised upon false reports, and the violation of the substantive protections contained within those laws, and intended specifically to shield BERMINGHAM from arbitrary and capricious official and private action, correspondingly resulted in violations of BERMINGHAMs fundamental rights to procedural due process under the Fourteenth Amendment. 71. The unlawful actions of the Defendants in violation of the Law

Enforcement Officers Bill of Rights resulted in a deprivation of a specific property interest to BERMINGHAM, i.e., his career service position as a law enforcement officer, and his ability to continue practicing within the law enforcement profession.

25

72.

Separately and specifically, the unlawful actions of GRAHAM, acting

in both an official and individual capacity, in initiating the retaliatory disciplinary action against BERMINGAM, constituted a direct violation of the LEOBOR and, consequently, effecting injury to BERMINGHAM including, but not limited to, a deprivation of BERMINGHAMs property interests. 73. BERMINGHAMs unlawful dismissal from Clermont PD has

effectively rendered him permanently unemployable within his chosen career as a law enforcement officer. 74. The Defendants knew, or were on constructive notice, that their

actions were violative of state statute, and would result in real harm to BERMINGHAM. WHEREFORE, BERMINGHAM requests that this Honorable Court will grant judgment in his favor, and respectfully requests that this Court grant the following relief: a. Enter an order finding that the Defendants have violated Fla. Stat. 112.531, et seq. (The Law Enforcement Officers Bill of Rights) and have thus violated BERMINGHAMs constitutional and statutory rights. Order the Defendants to make BERMINGHAMs whole as provided by Fla. Stat. 112.531, et seq.

b.

26

c.

Award BERMINGHAMs compensatory damages, including, but not limited to damages for emotional distress, humiliation, and public shame. Award BERMINGHAMs compensation for past pecuniary losses including, but not limited to back pay, with pre-judgment interest, loss of vacation pay, loss of health insurance benefits, loss of retirement benefits and all other losses due to violation of the LEOBOR culminating in BERMINGHAMs retaliatory dismissal from his employment with Clermont PD. Award BERMINGHAMs damages, costs, interest and attorneys fees all as provided under the LEOBOR. Grant such further relief as the Court deems just and proper. PRAYER FOR RELIEF

d.

e.

f.

WHEREFORE, BERMINGHAM respectfully requests that this Court furnish the following relief: 1. Declaratory and injunctive relief, as well as any additional damages and costs, pursuant to the First and Fourteenth Amendments to the United States Constitution. Pursuant to Title 42 U.S.C. 1983, equitable relief, compensatory and punitive damages for the actions of Defendants are in violation of the United States Constitution, federal law, and corresponding state law; Pursuant to Fla. Stat. 112.532, 112.533, equitable relief, compensatory and punitive damages for the actions of the Defendants in violating the statutory rights

2.

3.

27

further protecting procedural and substantive due process to law enforcement officers. 4. Equitable relief on all Causes of Action arising from violations to civil rights and/or in tort against the Defendants. An award of compensatory and punitive damages to BERMINGHAM on all Causes of Action arising from violations to civil rights and/or in tort against the Defendants. An award of all costs and fees incurred in the prosecution of this action. Attorneys fees and costs pursuant to 42 U.S.C. 1988. Grant such other and further relief as the Court shall deem just, equitable and proper. A JURY IS REQUESTED IN THIS MATTER.

5.

6. 7. 8.

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via hand delivery and certified process server to Office of the City Attorney Daniel Mantzaris, City of Clermont, Florida, c/o DeBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, 332 North Magnolia Avenue, Orlando, Florida 32801, this 17th day of January 2012. THE TATE FIRM, PLLC

VERIFICATION OF PETITIONER STATE OF FLORIDA COUNTY OF ORANGE I, KYLE BERMINGHAM, have read the foregoing Verified Petition for Preliminary Injunction and declare that the factual statements contained therein, as well as within the Complaint filed contemporaneous with the Verified Petition, are both true and correct. ____________________________________ KYLE BERMINGHAM Affirmed and signed before me on this 17th day of January 2012, by KYLE BERMINGHAM. ( ) who is personally known to me, or ( ) who produced the following identification: ________________________________. KYLE BERMINGHAM personally appeared before me at the time of notarization, and after being given the oath, signed and acknowledged signing the foregoing Verification in Support of the Verified Complaint. NOTARY PUBLIC: SIGN: _____________________________________ PRINT: _____________________________________ Commission Expiration Date & Commission Number (SEAL)